Earlier this month, the Department of Labor (DOL) issued a Final Rule implementing revisions to the military leave provisions of the Family and Medical Leave Act of 1993 (FMLA). In conjunction with the Final Rule, the DOL updated several of its existing FMLA forms to reflect the statutory and regulatory changes made to the law. The DOL also created a new form (Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave) to address FMLA leave taken to care for a veteran with a serious injury or illness. The updated and new forms can be found on the DOL’s website: Updated DOL Forms
Updates were made to the following forms:
Notice of Eligibility and Rights & Responsibilities
- Changes were made to this form to reflect the expansion of qualifying exigency leave to employees with family members not only in the National Guards or Reserves, but also in the Regular Armed Forces.
Certification of Qualifying Exigency for Military Family Leave
- Minor changes were made to this form to include other examples of documentation that can be supplied by an employee in support of a request for qualifying exigency leave under the FMLA.
Certification for Serious Injury or Illness of Covered Servicemember for Military Family Leave
- This form was retitled, “Certification for Serious Injury or Illness of a Current Servicemember for Military Family Leave,” to distinguish between leave requests made to care for a “current” servicemember as compared to a “veteran.”
- Changes were made to this form to reflect the expansion of military caregiver leave to the preexisting serious injuries or illnesses of current servicemembers that were aggravated in the line of active duty.
- Further changes were made to this form to reflect the expansion of health care providers authorized to certify a current servicemember’s serious injury or illness.
While the use of these optional forms is not required, employers cannot seek information from employees beyond what is permitted under the applicable FMLA regulations and the DOL-sanctioned forms. One thing notably absent from the updated forms is a disclosure notice that meets the requirements of Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA). Under the final regulations interpreting the GINA, the EEOC suggested that employers include the following language to all lawful requests for medical information:
The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. “Genetic information” as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.